*1 corporation the defendant There no evidence fire such fire started which caused any act guilty of after allegations negli- property, and spread plaintiffs’ prior premises defendant’s of the to the condition gence relate to the effect that presented evidence plaintiffs to the fire. might have been the mill which on the floor of liquid there liquid such was water evidence that they presented but oil, also by mill in the manu- used by processes caused one of fumes presented evidence that corduroy. They also facture building, of the smelled near rear from fuel were oil presented that on the started, then evidence was fire but alleged, ground morning fire no oil was on the of the fuel a certain amount of lint some while there was evidence that the defendants mill, there accumulated in weekly, blowers to take the lint completely the mill cleaned majority lint, which caused from the machines accumulating keep from regularly the lint swept the mill mill. plain- the evidence adduced A careful consideration the'case, pages, which" some 54 consists tiff the trial prove plaintiffs did not their case finding that the demands a granting err in the' Therefore, court did not laid. the trial motion nonsuit. J.,

Judgment Felton, J., Quillian, C. concur. affirmed. FINANCE 36958. v. MIDLAND COMPANY. WILLIS Rehearing denied April 13, 4, Decided March *2 Larsen, Joan in error. Frazer n &

Powell, Goldstein, Rankin, K. Murphy, James Alford Wall, contra. Judge; special ground one The of the amended

Nichols, motion for complains new trial that the in failing trial court erred to admit unnecessary certain It is evidence. pass this ground of the amended motion for new trial as it ap- inasmuch pears that the defendant, Willis, Julia Mae testified same objection and facts no connection, Ray was made. See in this v. Hutchinson, App. (108 27 Ga. 448, 449 S. 815), E. and Jones v. State, App. (109 (4) 27 Ga. 574 S. E. If the exclusion evidence error it was error harmless where uncontra- dicted objection. evidence same effect was admitted without defendant, Willis,

2. The Mae relies on Julia the line cases exemplified by Corp., Robbins Finance v. 95 Welfare (96 892), that, party S. E. 2d hold a lawfully which where has acquired possession property, lie, before trover will there must property by been and have a demand for the a refusal to deliver such the defendant. present case that a demand was

The evidence shows Mae for the made on the defendant Julia Willis instituted. The defendant con- present that later the action was a evidence insufficient to show tends that conversion part a refusal on her evidence did show inasmuch as the personalty. deliver the prerequi- refusal are the demand and

While it true that obtained the defendant has action where to a trover sites a demand shown lawfully, where possession of the days, and case a few present elapses, in time period of for the trior of question begun, it a is then trover action The evidence refused. the demand if facts to determine was made the demand finding that presented here authorized refused to deliver Willis, defendant, Mae Julia that the personalty. 394), S. E. the Su Hodges Cummings, 115 Ga.

In possession comes into person held preme Court plaintiff, the by the a demand lawfully, proof of personalty defendant, constitutes by the refusal to deliver owner, and -a conversion. husband, gave the with defendant, Julia Mae Willis person- on certain items of debt bill of to secure sale defendant, seriously be contended

alty, therefore it cannot of the trover the institution Willis, not, prior Julia Mae (cid:127) personalty. action, have of such pleaded presented Although the defendant *3 “custody automobile, of the law” property, the the was a defense to the demand, at time alone was not the trover action. where support

In the defendant cites cases of this contention property un against was officerwho held the trover instituted an “right of authority possession” der In those cases the law. could officer, was shown to be in such and of trover course against long “right possession.” not lie him he had the so as Peoples 860), Bank Pierce, Also cited is 143 Ga. 563 S. E. mortgage a and had the foreclosed property, a and, levied on while the sheriff held the instituted property. the same In trover action the defendant for that case trover would not lie the defendant. present impounded

In the when it case automobile after it had been involved abandoned driver been in collision, “right possession” may have while the impounded it, who had this evidence would not authorities negative by the defendant Julia Mae the conversion Willis. judgment or The that verdict contention alternative merit, and the trial court contrary to law is without motion for new trial amended. denying the defendant’s err Judgment Carlisle Quillian, JJ., concur. Town- affirmed. send, J., specially. concurs Felton, C. J., and P. Gardner, J., dissent. Judge, concurring specially. 1. pleadings

Townsend, The affirmatively this case show that the defendant Julia Willis and her husband received a loan from Company Midland Finance for the purpose purchasing an automobile, and they jointly that signed & bill of sale to secure debt securing the loan which the property listed included being bill of purchased sale the automobile and a lot of described household furniture. While the defendant Julia Willis of,the contended that her husband purchaser was the sole auto- mobile, surety only, and that she acted as the evidence authorized finding that the defendants were co-owners of automobile, and that the defendant Julia sole Willis owner of the furniture, prior which she had to the execution of the owned bill of sale to secure debt. automobile,

As it follows that were 'defendants tenants in common and each to the.

use jointly of the automobile with the other. The evidence finding February 2, demands a 1957, that involved in an accident and abandoned, and thereafter seized by police only and held officers. evidence as to the use the car Willis, that of Julia who drive, swore that she could not was not in the car time, nothing at the knew about its where- give abouts and was unable to information about had happened it; what her husband ha'd taken it jury off and told her he lent cousin. The was authorized to find a demand for both the furniture and automobile was days” 15, made “a few before March when the action was insti- tuted, 15, and that on personally March Julia Willis was served *4 process; with bail that the same serving at time the marshal process finding levied on and seized the furniture and, not automobile, imprisoned defendant; that she later executed replevy released, bond and was 'that the automobile also subsequently custody was turned over to the of the marshal. question no before in this There is us case as to whether the process legal. imprisonment of the defendant under bail was At that time she all of the to the marshal surrendered us, possession had her which, under the evidence before she she had Being a common as to tenant in control. husband, that of her arid right it hostile to possession no of of knowledge acquiring no of in fact she had no means if right own of knowledge so exercise her its whereabouts as to failing it, guilty she be of no conversion possession over could having her allowed her plaintiff reason of deliver it to the use having right much to its as she. away, he as husband take it If is different. the de furniture, however, the case As to the against the it her own use as converted fendant against her in the support a verdict plaintiff, there is evidence to days a few before The evidence is that action trover action. as well filed the furniture as demanded plaintiff, turned to the The fact that it not over automobile. plaintiff’s defendant resisted the plus that thereafter the the fact adversely plaintiff, to the and filed claim, claimed title thereto demand presumption that replevy bond, authorizes defendant an inference that the converted this refused, prior to the institution of action. property to owil use Co., E. Smith v. Commercial Credit S. states, in error “We brief of counsel for the for the or its readily posting of bond concede money presumption rise to that the de gives condemnation presumption possession of same. This unless fendant was in proof further of conversion unnec refuted would have rendered therefore, the burden was essary.” question, is whether The sole plaintiff to the manner which the demand which on the show refused, it It made or whether was the defendant. prima to me that the made out facie case for appears property prior of all institution of the conversion jointly, by showing possession title and defendants action demand, deliver, that then and a failure to but the defendant that there had been proving herself, carried the burden think, no conversion of the automobile. I do not however, finding offered which would she demand a to herself there been no conversion the furniture. Code possession provides: 107-101 “In actions to recover the chattels, necessary prove any it shall be conversion of the defendant is in when action

448 brought.” In Robbins Corp., Finance 95 Ga. Welfare 892) S. E. 2d we held that where the defendant is law- fully in possession of pledged chattels under bill of sale to debt, necessary secure it is to show a demand and refusal. The reason holding, for this shown, as there mere failure to pay a debt is not of itself sufficient conversion, to constitute certainly not until placed the defendant is no notice that' the plaintiff desires to rescind the contract. This decision is shown by a demand. There was a demand .in this case. It was fol- (for by shown) lowed reason, failure what it is not offer back, furniture and by further the posting replevy followed bond and the filing of an denying plaintiff answer any right or title to the defendant’s furniture. was, There ac- cordingly, sufficient evidence of conversion finding to authorize a in plaintiff favor of the on this issue. provides: Code 107-105 “The in an action § personal

recover property may accept elect whether to an al- ternative property verdict for the value, or its or whether to damages demand a alone, verdict for the property or for the alone hire, its if any; duty and it shall be the of the court to jury instruct the to render the plaintiff may verdict thus elect.” provides: Code 107-106 “An alternative verdict in an § action of trover far so vests the title to the property sued for in the plaintiff, judgment until the paid by defendant, judgment such shall have the lien property first on the for, sued to the exclusion of all other claims whatsoever.” Code 110-514 provides: damages “When a verdict shall be in rendered favor of a trover, judgment in and a thereon, entered judgment said verdict shall not changing have the effect of property subject-matter which is the suit, vesting of the or in same the defendant in said suit, damages until after the by costs recovered in paid such action are off discharged, except subject so far as such to sale under and virtue issuing upon of an execution judgment such trover, such action of and to make the same liable payment damages and costs recovered in said action, preference judgment, other or order, decree defendant in said action of trover.” In Mitchell v. Printup, 19 (1) judgment it was held: “Where the verdict and alternative, trover is in the the defendant must either to elect prescribed. deliver the within time . . It is un- questionably a relaxation of the privilege law and a to defendants permit up discharge them to deliver damages recovered them.” The of such verdict effect *6 judgment, Express and as Lynch, set out in Southern Co. v. (1) Ga. 240 if the defendant that does not elect to surrender property period the in judgment, judg- within the stated the money. An ment becomes absolute for execution based on such judgment general against property a all of the defendant’s special against property subject which is the matter of the subj levy action, particular property ects that to and sale for realizing purpose pay judg- a sufficient amount to off the Frick & Ga. 482 Davis, ment. Co. E.S. that, plain- in plaintiff

Counsel for the error contends since the greater plus tiff can amount than the debt interest, recover no judgment plaintiff property would not be entitled to a for the greater than the amount of the debt. But itself because this is harmed, here has not been even if this contention defendant right correct, for the reason that the defendant has a to choose property, sell whether to surrender the or to force proceeds if satisfy Apparently it his debt out of the he can. election, this since the defendant exercised the 10 also days property expired before allowed to elect surrender danger of error was out. She is in no that the writ sued having greater seize a value than the will debt for the reason that hers was the final decision as to whether judgment or money judg- should have a a special lien ment with a on its satisfaction. The plaintiff’s based judgment, form of the on election of an verdict, entirely proper. alternative Judge, dissenting. only Felton, Chief evidence to show “Q. a demand was made on the defendant that follows: you did demand that she turn over the And furniture and the you? Yes, A. sir. I told her I if couldn’t Q. get— judge your just in own you Just tell the words how happened. A. told her went about it and what We we were something going to have to have the account in order carry position wasn’t it, pay, and she told us that she she pay and I have to have Cíate pay, other bills to would it. had I have that furniture And I told her then would have to further carry I it for reasons of automobile, because couldn’t a demand is a sufficient nonpayment.” I do not think that such However, assum- requirements of the law. demand within the did ing argument that such constitute valid for the sake of redeliver demand, I do that a refusal to not think there was a conversion. property by sufficient to show the defendant she was never that The defendant’s uncontradicted she had never driven the automobile, automobile, possess not automobile, not drive did could an passenger in the auto- driver’s license and had not ridden the time when six testified at mobile over times. She further alleged her she know where demand was made on alleged The evidence further shows automobile was. 13, 1957; 12 or that on demand was made on her around March Department impounded February 2, Atlanta Police 1957, the legis placed custodia because the automobile and that was collision and had been been involved the automobile had *7 de- There evidence that the abandoned the driver. is no she deliver the fendant ever made the statement that would not any disputing to or ever made statement the only can plaintiff’s right possession. of conclusion that alleged be from evidence that after the demand was drawn just nothing. on her defendant Under the evi- made any part I do not refusal on the of dence think there was alleged defendant deliver the after demand to in re- deliver the automobile position or that she was in a to possession of sponse alleged demand, to the and that lack See part. connection, on her in this was due to conversion IV; IV; 646, 844, 129 A. Am. Jur. 628, 61 A. L. R. L. R. 53 refusal is not Conversion, 47. “A demand and Trover and conversion, and to make conversion; only evidence of it it power appear it must that the had it in his to such, defendant Seago Pomeroy, 46 Ga. supplied.) 227, (Emphasis deliver.” (headnote 1) “It is error held in that case 230. It was further jury case, that a charge in a trover demand court prop- appearing conversion, refusal is proof power, control of possession, or in erty sued

451 time, defendant, at the of the demand and refusal.” “In trover gist of the action conversion, which is ‘an unauthorized assumption right and exercise of the of ownership personal over property belonging hostility another, rights; his an act of dominion over personal property of another inconsistent rights; with his or appropriation.’” an unauthorized Wood v. Frank Co., (86 Graham App. 621, 91 Ga. 622 691). S. E. 2d There are whereby various may means be shown, conversion just demand and refusal is one of these means. Actually the refusal of a demand be must such a refusal as would amount to an assumption unauthorized right and exercise of the ownership hostility plaintiff’s rights or an act of do- minion rights inconsistent with his or an otherwise unauthorized appropriation. I think under the evidence in this case that no such refusal was shown. answer,

In her the defendant disclaimed all title and interest in and possession automobile. The defendant on the stand also made such disclaimer. Under the evidence case and in view of disclaimer, such the burden proof on the to show a valid demand and a valid refusal to (73 redeliver. Wood v. Sanders, App. 84, 55). S. E. 2d This, think, I failed to do. legal

Since the title jointly of the automobile the de- fendant and her husband other, they each each had equal right possession of the automobile. The evidence fails to disclose that a demand ever made on the defendant’s husband who from the evidence in fact had exclusive automobile as allega- the defendant. Under the petition tions of the joint defendant and her husband were Nunn, tortfeasors. See Council v. 407, 41 Ga. S. E. Especially since the evidence the defend- showed that *8 ant’s husband in fact had exclusive of the automobile defendant, I think that before the defendant could be guilty tort of conversion part before a demand and refusal on could be shown to be conversion, there must also have been a demand made on the husband and a part on his redeliver. refusal See C. J. S. 562, Trover and Conversion, (c); Mitchell v. Williams & (N.Y.), 1 v. Miller Jessop (N.Y.) 13;

Roberts, Reports 4 Hill’s Keyes 321. demanded a verdict evidence, under think

I defendant. in this dissent. J., concurs P. Gardner,